Original proceeding in discipline. Opinion filed July 17, 2009. Disbarment.

Stanton A. Hazlett, disciplinary administrator, argued the cause and was on
the brief for the petitioner.

Dan E. Turner, of Turner & Turner, of Topeka, argued the cause for
respondent, and Phillip L. Turner, of
same firm, was with him on the brief, and Thomas O. Rost, respondent, argued the
cause pro se.

Per Curiam: This case is an original, contested disciplinary action against
Thomas O.
Rost, who was admitted to practice law in this state on February 16, 1966, but who has registered
with the Kansas Supreme Court as being on retired status since October 1, 2005. The formal
complaint filed by the office of the Disciplinary Administrator contained two counts, designated as
Cases Nos. DA9925 and DA10014. The overarching allegation is that Rost continued to actively
practice law while on retired status. See Supreme Court Rule 208(a) and (f)(1) (2008 Kan. Ct. R.
Annot. 307) (attorney registered as retired not permitted to practice law in this state).

Rost's current retired status was the result of three prior disciplinary complaints, DA8437,
DA8440, and DA8946. In those cases, the Disciplinary Administrator agreed to recommend that
Rost receive an informal admonishment in exchange for Rost's agreement to retire from the
practice of law by October 1, 2005. As part of a June 6, 2005, "settlement" agreement with the
Disciplinary Administrator, Rost agreed to immediately begin the transition of all of his pending
"cases, guardianships and conservatorships[,] and other legal business" to a Kansas licensed
attorney and to file petitions to obtain court approval to resign from any active guardianships
and/or conservatorships. The review committee accepted the agreement, and the Disciplinary
Administrator informally admonished Rost for violating Kansas Rule of Professional Conduct
(KRPC) 1.5 (2008 Kan. Ct. R. Annot. 448) (attorney fees) and KRPC 8.4 (2008 Kan. Ct. R.
Annot. 586) (misconduct). Rost took retired status with the Clerk of the Appellate Courts
effective October 1, 2005.

Apparently in conjunction with his "retirement," Rost entered into an agreement to sell his
"client base and files" to Eric Kjorlie, an attorney who rented office space in Rost's law office
building. The purchase price was "five times his net earnings from the 2004 practice of law,"
payable solely from "the proceeds of [Rost's] client base." The parties agreed "to share expenses
on agreed items such as copier, stamp machine, etc." and Rost agreed to provide "administrative
assistance" to Kjorlie. Kjorlie testified that, pursuant to the agreement, he retained one-half of any
fee generated from Rost's client base to utilize for expenses, giving Rost the other half as payment
upon the agreement. The Disciplinary Administrator did not challenge the propriety of this
agreement, and any issue in that regard is not currently before the court.

After retiring, Rost began a self-described consulting business at the same location where
he had practiced law, and where he had previously been associated with his father in the practice
of law. Rost changed the sign in front of the building from "Rost & Rost Attorneys at Law"
to
"Rost & Rost Consulting, Incorporated," albeit there was no other Rost associated with the
new
business.

The count designated as case DA9925 emanated from a complaint filed with the
Disciplinary Administrator by Shawnee County District Judge Frank Yeoman, who was presiding
over certain conservatorship cases in which Rost was involved, after his retirement. The judge
was particularly concerned about an April 14, 2006, letter signed by Rost, which was on "Rost
&
Rost Attorneys at Law" letterhead, and which explained that a delay in filing a conservatorship
final accounting was due to the illness of Rost's paralegal. The judge noted that, even after his
retirement, Rost had "continued to identify himself with name and [attorney] registration number"
in all of the documents filed in the conservatorship cases and that it appeared to the judge that
Rost continued "to maintain the same staff, work out of the same office, and even . . . use the
same letterhead identifying him as an attorney." The judge expressed his concern that a client
might not be able to discern that Rost was no longer permitted to actively practice law.

The count designated DA10014 arose from a complaint letter from James G. Chappas, a
Kansas attorney hired by Mr. David Lloyd to find out what Rost had done to earn the fees Lloyd
had paid to Rost. Chappas was unable to obtain an itemization and documentation of the work
performed for those fees. Rost's relationship with Lloyd began prior to Rost's retirement but
continued thereafter.

The Disciplinary Administrator assigned Scott Hesse to investigate the complaints. Hesse
interviewed Judge Yeoman, Lloyd, Chappas, and the respondent, Rost. During his 2006 interview
with Rost, Hesse observed that Rost's law school diploma and certificates of bar admission issued
by the Kansas Supreme Court and the Kansas federal district court were displayed on the office
walls. Hesse also noticed a check on Rost's desk that was payable to "Rost and Rost, Attorneys at
Law."

In the interview with Hesse, Rost labeled himself a "paralegal." Rost related that he would
go to court with his former clients and their new attorney and explain what was going on in the
case, so that the new attorney would not need to look through a thick case file. Also during the
interview, Hesse did an internet search of Rost's name and discovered three websites identifying
Rost as an attorney actively practicing criminal law, one of which had been updated in March
2006. Rost denied knowingly advertising on those websites.

In answering the formal complaint, Rost asserted that the hearing panel did not have
jurisdiction to discipline a retired attorney. In response, the panel scheduled a prehearing
conference, at which Rost was instructed to file a formal motion challenging jurisdiction. Rost's
May 13, 2008, formal motion to dismiss was overruled by the panel, and Rost sought relief from
that ruling from the Supreme Court. On July 14, 2008, this court overruled Rost's motion, finding
that the Supreme Court and the Disciplinary Administrator had jurisdiction to consider the
disciplinary complaints, notwithstanding Rost's retired status. Thereafter, the hearing panel
proceeded with the formal hearing, with Rost continuing to object to jurisdiction.

Following the hearing, the panel filed a final hearing report on January 12, 2009, in which
it found that Rost had violated KRPC 5.5(a) (2008 Kan. Ct. R. Annot. 565) (unauthorized
practice of law); KRPC 8.4(d) (2008 Kan. Ct. R. Annot. 586) (conduct prejudicial to the
administration of justice); and Kansas Supreme Court Rule 208(a) (2008 Kan. Ct. R. Annot. 307)
(only attorneys registered as active may practice law in Kansas). Pursuant to Supreme Court Rule
212 (2008 Kan. Ct. R. Annot. 327), Rost filed exceptions to the panel's findings and submitted a
brief to this court. Accordingly, we set forth the panel's factual findings:

"FINDINGS OF FACT

"16. The Hearing Panel finds the following facts, by clear and convincing evidence:

"17. Thomas O. Rost (hereinafter 'the Respondent') is an attorney at law, Kansas
Attorney Registration No. 6297. His last registration address with the Clerk of the Appellate
Courts of Kansas is 827 Southwest Topeka Boulevard, Topeka, Kansas 66612. The Respondent
was admitted to the practice of law in the State of Kansas on February 16, 1966.

"18. In 2001 and 2003, three disciplinary complaints were filed against the
Respondent,
DA8437, DA8440, and DA8946. The Review Committee of the Kansas Board for Discipline of
Attorneys directed that a Hearing Panel conduct a Formal Hearing regarding the three
complaints.

"19. Prior to the hearing, the Disciplinary Administrator and the Respondent
entered
into an agreement regarding the resolution of the three complaints. Specifically, the Disciplinary
Administrator agreed to recommend to the Review Committee that it direct that the Respondent
be informally admonished by the Disciplinary Administrator for the rule violations in the three
disciplinary cases in return for the Respondent's agreement to retire from the practice of law. The
Disciplinary Administrator and the Respondent submitted the agreement to the Review
Committee.

"20. The Review Committee accepted the agreement of the parties and directed
that the
Disciplinary Administrator informally admonish the Respondent for the rule violations contained
in DA8437, DA8440, and DA8946. The Respondent registered with the Clerk of the Appellate
Courts as retired, as of October 1, 2005.

"21. In an undated agreement, the Respondent agreed to sell his practice to Eric
Kjorlie.

"22. The Respondent and Mr. Kjorlie shared the fees that were received pursuant
to the
agreement. At the hearing on this matter, Mr. Kjorlie testified regarding this subject, as follows:

'Q. [By Mr. Hazlett] Do you have any–did you have any agreement with
how you would
handle fees under those circumstances?

'A. [By Mr. Kjorlie] Those fees would be brought in, I would put it into an
account, and
then we would split it out so we could maintain the office operation there in terms of sharing the
fax machines, the company machines, the scanning machines, and that kind of an arrangement.

'Q. As a practical matter let's say somebody came in that was a client of Mr. Rost's
and
let's say this happens after October 1st of 2005, pays you a $2,000 retainer, how would that be
split up?

'A. Well, if it was a client that come [sic] in on that type of a referral I
would put the
money into the 8227 account. Half would come in to maintain operations and expenses I could
draw from that, the other half would go into this agreement and that's basically how we operated.

'Q. So half would go to the payment of this exhibit–your obligations under
this exhibit
12 agreement?

'A. Right.'

"23. Prior to the Respondent's retirement, the Respondent practiced at 827
Southwest
Topeka Boulevard, Topeka, Kansas. The Respondent's paralegal was Tonya McConnell. Located
in front of the Respondent's building was a sign that read, 'Rost & Rost, Attorneys at Law.'
During his father's lifetime, the Respondent practiced with his father.

"24. Following the Respondent's retirement, he continued to work at 827
Southwest
Topeka Boulevard, Topeka, Kansas. The Respondent had the sign changed to read, 'Rost &
Rost
Consulting, Inc.'

DA9925

"25. On April 14, 2006, the Respondent sent a letter to the Honorable Frank
Yeoman,
Jr., in case number 91GC126, In re Jeffrey Dusseault. The letter was prepared on the
Respondent's law firm letterhead and identified the Respondent as an attorney. The letter
provided:

'This letter is in response to Mr. Hehtmanek's letter of April 13, 2006. Please be
advised
that within the next 14 days the final accounting for the above referenced case will be filed with
the Clerk of the District Court.

'My office has been short staffed due to my paralegal having surgery and being out
for 6
weeks and now back only part time.'

The Respondent's letter would lead a reasonable person to conclude that the Respondent
is an
active practicing attorney.

"26. On April 25, 2006, the Respondent filed a Petition for the Approval of Eighth
and
Final Annual Accounting in the Dusseault case. The Respondent also filed an Order for Hearing
and a Notice of Hearing. The documents were signed by the Respondent and the Respondent
included his attorney registration number.

"27. Judge Yeoman wrote to the Disciplinary Administrator's office regarding his
observations of the Respondent. W. Scott Hesse was assigned to investigate Judge Yeoman's
complaint. During the course of his investigation, Mr. Hesse called the Respondent's office to
schedule an interview. When Mr. Hesse called the Respondent, the Respondent answered the
telephone and stated, 'Rost & Rost.'

"28. Mr. Hesse scheduled an interview with the Respondent in the Respondent's
office.
When Mr. Hesse went to the Respondent's office, he observed the Respondent's law license
hanging on the wall. Additionally, Mr. Hesse observed a check at the Respondent's office titled,
Rost & Rost, Attorneys at Law.

"29. During the interview, the Respondent stated that he was retired from the
practice of
law and considered himself a paralegal. The Respondent told Mr. Hesse that he continues to meet
with clients but that if a client wanted to go to court, he would refer the client to another attorney.
The Respondent stated that he would also go to court with the client and the attorney so that he
could assist the attorney handling the case.

"30. The Respondent told Mr. Hesse that his client base for Rost & Rost
Consulting, Inc.
was the same client based as Rost & Rost, Attorneys at Law. The Respondent informed Mr.
Hesse
that he intended to advise his clients on business issues, including farming, real estate, military
matters, and other matters.

DA10114 "31. William Fish, a veteran, was declared
incompetent by the Veterans Administration.
Judge Yeoman appointed David Lloyd, a friend of Mr. Fish, as curator for Mr. Fish, so that Mr.
Lloyd could manage Mr. Fish's financial matters.

"32. At the time the curatorship was initiated, Robert Coulthard represented Mr.
Lloyd
in his capacity as Mr. Fish's curator. Because Mr. Coulthard was unable to appear with Mr. Fish
at a hearing held August 4, 2004, at Mr. Coulthard's request, Mr. Kjorlie appeared with Mr.
Lloyd. At that time, and continuing to today, Mr. Kjorlie rents office space in the Respondent's
building.

"33. On March 30, 2005, Mr. Lloyd came to the Respondent's office and requested
that
the Respondent assist him in reconstructing the records relating to the first seven months of Mr.
Fish's curatorship. At that time, Mr. Lloyd paid the Respondent $600.00 from Mr. Fish's account.
In the memo line, Mr. Lloyd indicated that the check was for 'Legal Fee's VA.'

"34. On March 31, 2005, Mr. Lloyd and the Respondent continued working
together on
reconstructing the records relating to Mr. Fish's curatorship.

"35. On April 4, 2005, Mr. Lloyd and the Respondent went to US Bank to request
bank
records.

"36. On May 2, 2005, Mr. Lloyd paid the Respondent $678.00 from Mr. Fish's
account.
In the memo line, Mr. Lloyd indicated that the check was for 'accounting for VA.'

"37. On June 24, 2005, Mr. Lloyd paid the Respondent $600 from Mr. Fish's
account. In
the memo line, Mr. Lloyd indicated that the check was for 'audit Bill Fish.'

"38. The first annual accounting in Mr. Fish's curatorship was due in August,
2005.
However, Mr. Lloyd did not prepare and file the annual accounting as required by the Court.

"40. On March 9, 2006, Mr. Lloyd received a letter from the Veterans
Administration
indicating that Mr. Fish's benefits were suspended because Mr. Lloyd failed to file the annual
accounting in a timely manner.

"41. After Mr. Fish's benefits were suspended, Mr. Lloyd came to the
Respondent's
building for assistance. Thereafter, on April 26, 2006, a First Annual Accounting, covering the
period from August 27, 2004, to August 26, 2005, was filed in Mr. Fish's curatorship.(2)

"42. In the First Annual Accounting, Mr. Lloyd acknowledged that he paid the
Respondent a total of $1,878.00 for 'Accounting Legal Fees.'

"43. On May 15, 2006, the Office of Regional Counsel of the Veterans
Administration
objected to the First Annual Accounting. One of the objections was based upon the 'Accounting
Legal Fees' paid to the Respondent. Another objection lodged by the Veterans Administration
included:

'The ward was renting the home, which he shares with Mr. Campa, an expense for
rent
of $350.00 for rent to Mr. Lloyd shows each month until 1-03-05 when mortgage payment to the
Educational Credit Union of $691.00 appears and does each month for the remainder of the
accounting period along with repair expenses for the residence, plumbing of $1,645.69, A/C
repair $197.49 and monthly expense of over $100.00 to Orkin for pest control. The assets listed
shows a home with a value of $35,900.00 and a mortgage of [$]10,467.50, [sic] this
belonged to
the Curator David J. Lloyd and his spouse. No rent payments from Mr. Campa are reflected in
the accounting.'

"44. In May, 2006, Mr. Lloyd met with the Respondent regarding the issues raised
by
the Veterans Administration regarding the rent and mortgage payments made and the ownership
of the property where Mr. Fish resided. Mr. Lloyd paid the Respondent $3,500 to assist him with
resolving the problem with the property. The Respondent told Mr. Lloyd that Mr. Lloyd would
have to 'make peace' with Mr. Kjorlie, the Court, and the Veterans Administration, over the issue
with the property.(3)

"45. The Respondent contacted the title company and determined the ownership of
the
property. The Respondent accompanied Mr. Lloyd to the bank to determine how Mr. Lloyd
financed the property.

"46. In order to resolve the problem with the property, the Respondent
recommended to
Mr. Lloyd that he execute a quitclaim deed regarding the property in question in favor of Mr.
Fish. On May 24, 2006, Mr. Lloyd and his wife executed a quitclaim deed in Mr. Fish's favor.
The quitclaim deed was prepared by Ms. McConnell.

"47. On May 24, 2006, Mr. Lloyd filed an Amended Petition for the Approval of
First
Annual Accounting and Approval of Successor Curator. The pleading was prepared after Mr.
Lloyd met with the Respondent. The pleading purports to have been made and filed by Mr.
Kjorlie. In the pleading, regarding the fees paid to the Respondent, Mr. Lloyd stated:

'The legal issues and reconstruction issues totaling One Thousand Eight Hundred
Seventy-Eight Dollars ($1,878.00) are due to locating lost bank statements; acquiring duplicate
bank statements from the financial institution; reconstruction of the transactions during this
accounting period using the bank statements, cancelled checks and check registers, which took a
number of hours in order to prepare the First Annual Accounting.'

Further, in response to the issue raised concerning the rent and mortgage payments made
and the
ownership of the property, Mr. Lloyd stated:

'3. That the Petitioner prior to the curatorship on August 19, 2002, purchased a 24'
x 41'
mobile home and placed the mobile home on four (4) lots that were owned by the Petitioner and
then sold the mobile home and lots to William A. Fish for a total amount of Twenty-Five
Thousand Three Hundred Dollars ($25,300.00).

'4. That William A. fish [sic] at the time could not qualify for a loan to
purchase a living
space for himself and his caregiver.

'5. That the Petitioner states that the loan is now paid in full and the home and lots
are
deeded to William A. Fish.

'6. Any sum shown as rent was made as loan payments not rent.

. . . .

'8. That the Petitioner states that Raymond R. Campa is not a tenant; Raymond R.
Campa is a full time caregiver and receives monthly room and board along with a weekly salary
in the amount of Three Hundred Eleven Dollars ($311.00).'

Finally, Mr. Lloyd requested that Mr. Kjorlie be appointed as successor curator.

"48. Mr. Lloyd suffered various health problems and had difficulty in recalling the
reason for paying the Respondent the $3,500.00. On June 19, 2006, Mr. Lloyd retained James G.
Chappas to assist him in determining what Mr. Lloyd had paid the Respondent to do. To that
end, Mr. Chappas wrote to the Respondent.

"49. On June 28, 2006, Mr. Kjorlie responded to Mr. Chappas in behalf of the
Respondent, informed Mr. Chappas that he was representing the Respondent, and stated that Mr.
Lloyd paid the Respondent the $3,500 for a business financial analysis relating to ownership by
Mr. Lloyd of a piece of real estate.

"50. On June 29, 2006, Mr. Chappas wrote to Mr. Kjorlie and requested an
itemization
of the time expended in earning the $3,500.00. Neither the Respondent nor Mr. Kjorlie provided
Mr. Chappas or his client with an itemization of the time expended in earning the $3,500.00.

"51. On July 6, 2006, Judge Yeoman sent Mr. Kjorlie a letter regarding the
Amended
First Annual Accounting. In the letter, Judge Yeoman stated:

'The appearance of payments as reflected in the accounting made to Rost &
Rost is
rather "out of the blue" since Thomas Rost had nothing to do with this case that was known to
the Court. I have since learned more about this situation (VA attorney had made inquiry before
me) so I am now at least informed that Mr. Lloyd went to Rost for help with his accounting. Why
he would do that I do not know! Lloyd's records were, so I am told, in disarray and he required
help. Rost was not his attorney, you were, and you have insisted that you and Rost have only an
office sharing relationship.

'The payments were made for "accounting legal fees," whatever that terminology
may
mean. I know Mr. Rost is not an accountant and was, at that time, engaged in the practice of law.
Lloyd was not authorized to pay a lawyer by use of the curatorship assets for services rendered
without having first obtained permission of the Court by appropriate pleadings and order. The
curator is ordered to reimburse the estate for all sums paid from the curatorship to the law firm of
Rost and Rost – to the best of my knowledge that would be the total sum of $1,878.00
based on
what is reported. He will have the opportunity to show, by appropriate documentation, the
justification for the payments and this order will be reconsidered if he does that.'

"52. Mr. Kjorlie responded to the judge's letter on July 20, 2006. In that letter, Mr.
Kjorlie explained what the Respondent did to earn the $1,878.00 in fees. Mr. Kjorlie, however,
failed to file a motion with the Court to allow the fees.

"53. On September 4, 2006, Mr. Chappas wrote to Mr. Kjorlie and requested
information regarding the Respondent's malpractice carrier.

"54. On September 20, 2006, Mr. Kjorlie wrote to Mr. Chappas. Mr. Kjorlie did
not
provide Mr. Chappas with information regarding the Respondent's malpractice carrier.
Regarding the $3,500.00, Mr. Kjorlie stated: 'Mr. Rost, in addition, through a great deal of time
and effort was able to work out the real estate transaction for which he charged Mr. Lloyd a
commission . . .'

"55. On September 27, 2006, the Respondent sent a letter to the Disciplinary
Administrator's Office. The letter was prepared on the Respondent's law firm letterhead and
identified the Respondent as an attorney. However, on September 28, 2006, Ms. McConnell
wrote to the Disciplinary Administrator's Office and explained that she was at fault for sending
the letter the day before on attorney letterhead.

"56. On October 6, 2006, Mr. Kjorlie wrote to Mr. Chappas. Mr.

Kjorlie asserted that he does not represent the Respondent in regard to the Fish
Curatorship.
Additionally, Mr. Kjorlie stated:

'. . . It is my understanding that at the request of Mr. Lloyd, Mr. Rost as a matter of a
business
consultation did a background investigation as it relates to the Education Credit Union for a set
consulting fee and not as previously stated as a real estate commission, which is inaccurate.'"

In finding a violation of KRPC 5.5(a) (2008 Kan. Ct. R. Annot. 565), which prohibits the
unauthorized practice of law, the panel relied in part on State v. Schumacher, 214
Kan 1, 519
P.2d 1116 (1974), which it found to be factually analogous. There, "[t]he only act respondent
refrained from doing as a lawyer was making a formal appearance in court, i.e., he
stayed behind
the rail; in all other respects he continued to function just as he had before the suspension." 214
Kan. at 20. The panel specifically noted Schumacher's quotation from State ex
rel., v. Perkins,
138 Kan 899, 908, 28 P.2d 765 (1934):

"One who confers with clients, advises them as to their legal rights, and then takes the
business
to an attorney and arranges with him to look after it in court is engaged in the practice of law."
214 Kan. at 9.

The panel found that, after Rost took retired status, he continued "to serve his clients in
the same manner in the same location under the same name without interruption or discontinuity,"
with the only change being to have another attorney "front for him on most court appearances."
The panel recited:

"62. After the Respondent registered as a retired attorney, he practiced law. The
Respondent held himself out as an active attorney, sent correspondence to the Court indicating
that he continued to be an active attorney, utilized his bar number, filed pleadings with the Court,
met with clients, provided Mr. Lloyd with legal advice, and directly assisted Mr. Lloyd in
resolving legal problems, all in violation of the Respondent's agreement with [the Disciplinary
Administrator]. Because the Respondent continued to practice law after taking retired status, the
Hearing Panel concludes that the Respondent violated KRPC 5.5(a)."

With respect to the remaining violations, the panel declared:

"63. 'It is professional misconduct for a lawyer to . . . engage in conduct that is
prejudicial to the administration of justice.' KRPC 8.4(d). In this case, the Respondent engaged in
'conduct that is prejudicial to the administration of justice' when he practiced law when he was
not authorized to do so. As such, the Hearing Panel concludes that the Respondent violated
KRPC 8.4(d).

"64. Kan. Sup. Ct. R. 208(a) states, in pertinent part, that, '[o]nly attorneys
registered as
active may practice law in Kansas.' The Respondent engaged in the practice of law after he took
retired status. Because the Respondent practiced law at a time when he was not registered as an
active attorney, but rather as a retired attorney, the Hearing Panel concludes that the Respondent
violated Kan. Sup. Ct. R. 208(a)."

RESPONDENT'S ISSUES

In his brief to this court, Rost identifies seven issues, which we take the liberty of
paraphrasing as follows: (1) The Kansas Supreme Court has no jurisdiction to enforce the Kansas
Rules of Professional Conduct against an attorney who has registered as being retired; (2) the
hearing panel's conclusions of law regarding the areas of law in which a retired attorney could
properly engage in nonlegal work improperly restricts a retired person's business opportunities;
(3) the hearing panel improperly ignored Rost's written and oral notifications that he was no
longer practicing law; (4) Rost's post-retirement activities did not constitute the practice of law;
(5) the hearing panel failed to use the clear and convincing standard; (6) the hearing panel
improperly applied the standards for imposing sanctions; and (7) the hearing panel
recommendations for sanction were inappropriate.

JURISDICTION

Rost concedes that "[a]ny attorney admitted to practice law in this state and any attorney
specially admitted by a court of this state for a particular proceeding is subject to the jurisdiction
of the Supreme Court and the authority hereinafter established by these Rules." Supreme Court
Rule 201(a) (2008 Kan. Ct. R. Annot. 261). He does not deny that he was admitted to practice
law in this state in 1966. However, he crafts an argument, based upon the provisions of Supreme
Court Rules 208(a) and (f)(1) (2008 Kan. Ct. R. Annot. 307), that he ceased to be admitted to
practice law when he registered as a retired attorney.

Specifically, Rost points to the provision in Rule 208(a) which permits an attorney to
register as "active; inactive; retired; or disabled due to mental or physical disabilities," and the
following requirement that "[o]nly attorneys registered as active may practice law in Kansas."
2008 Kan. Ct. R. Annot. 307. Likewise, Rost notes that Rule 208(f)(1) declares that "[a]n
attorney who has registered as retired, . . . shall not be eligible to practice law in this state." 2008
Kan. Ct. R. Annot. 308. He then argues that because an attorney registered as retired is not
permitted to practice law, such an attorney is not "admitted to practice law" within the meaning of
the jurisdictional provisions of Rule 201(a).

We disagree with the suggestion that an attorney loses his or her hard-earned status as an
admitted Kansas attorney simply by registering as anything other than "active." First, Rost ignores
that our Rules Relating to Admission of Attorneys are set forth in Rules 701 through 710,
inclusive (2008 Kan. Ct. R. Annot. 705-726). Most applicants for admission are governed by Rule
704 (2008 Kan. Ct. R. Annot. 710), entitled Admission to the Bar Upon Written Examination.
Those applicants must demonstrate that they are "of good moral character, possessed of the
requisite general education, and otherwise qualified to be examined," prior to taking a written
examination to demonstrate their knowledge of the law. Rule 704(c) (2008 Kan. Ct. R. Annot.
711). Then, if an applicant successfully passes the bar examination, the Supreme Court issues an
order of admission, which becomes effective upon the taking of an oath.

Only after successfully clearing the hurdles to obtain admission to the Kansas bar, via
Kansas Supreme Court order, is an attorney subject to Rule 208's requirement to annually register
with the Clerk of the Appellate Court. Apparently, Rost overlooks the first sentence of Rule
208(a), which specifies that "[a]ll attorneys . . . admitted to the practice of law before
the
Supreme Court of the State of Kansas shall annually, . . . register with the Clerk of the Appellate
Courts . . . ." (Emphasis added.) 2008 Kan. Ct. R. Annot. 307. Such language contemplates that
there is a distinction between initially obtaining an order of admission from the Kansas Supreme
Court and registering a status with the Clerk of the Appellate Court which provides a current
eligibility to actively practice law.

Moreover, an attorney's unilateral action does not rescind the Supreme Court's order of
admission. For instance, when an attorney voluntarily surrenders his or her license to practice law,
the Supreme Court responds with an order of disbarment which directs that the attorney's name
be stricken from the roll of attorneys admitted to practice in this state. See Supreme Court Rule
217 (2008 Kan. Ct. R. Annot. 343). Rule 208 does not require a Supreme Court order to permit
an attorney to register on retired status with the Clerk of the Appellate Court and that act does
not affect the order admitting the attorney to practice law in this state or effect a removal of the
attorney's name from the roll of admitted attorneys. Just as telling, Rule 208(f)(1) does not require
a retired attorney to comply with the provisions of Rules 701 et seq., relating to the
admission of
attorneys, in order to be reinstated to active status.

Accordingly, we hold that an attorney who has been admitted to practice law in the state
of Kansas by order of the Supreme Court, but who has registered with the Clerk of the Appellate
Courts as being on retired status, remains subject to the Kansas Rules of Professional Conduct
and subject to the enforcement of those rules by the Supreme Court and its designees.

RESTRICTING BUSINESS OPPORTUNITIES

Rost argued to the hearing panel that he was not practicing law because he was merely
doing things that a person who is not an attorney might do. For instance, a nonlawyer real estate
agent might prepare contracts or deeds, and, therefore, the argument is that a retired attorney is
permitted to do the same things without being deemed to practice law.

The hearing panel answered that argument by opining that whether a retired attorney was
practicing law when doing tasks that are also performed by nonlawyers depends on the retired
attorney's area of practice prior to retirement. For example, a retired trial lawyer could become a
real estate broker who completes simple contracts, negotiates deals, and fills out forms without
practicing law. On the other hand, a real estate lawyer would be deemed to be practicing law if he
or she became a real estate broker performing the same tasks. Rost contends that the panel's
area-of-prior-practice rule represents an unconstitutional restriction on a retired attorney's pursuit
of
business opportunities.

First, we specifically reject the panel's proposed rule that the determination of whether a
retired attorney is engaging in the unauthorized practice of law turns on the nature of the
attorney's pre-retirement practice. Apparently, Rost's argument–that he was only doing
what
nonlawyers often do–enticed the panel to promulgate a rule which would provide some
guidance
on when an attorney can provide law-related services which are often provided by nonlawyers,
e.g., real estate brokers, without being subject to the Rules of Professional Conduct.
The panel's
endeavor to establish a bright-line rule was unnecessary. An attorney's responsibilities regarding
law-related services are specifically defined in KRPC 5.7 (2008 Kan. Ct. R. Annot. 567).

KRPC 5.7(b) defines law-related services as those "that might reasonably be performed in
conjunction with and in substance are related to the provision of legal services and that are not
prohibited as unauthorized practice of law when provided by a nonlawyer." 2008 Kan. Ct. R.
Annot. 567. The comments to the rule note that law-related services can involve "[a] broad range
of economic and other interests of clients," examples of which include "providing title insurance,
financial planning, accounting, trust services, real estate counseling, legislative lobbying, economic
analysis, social work, psychological counseling, tax preparation, and patent, medical or
environmental consulting." 2008 Kan. Ct. R. Annot. 569. Accordingly, the services which Rost
contends that he was providing to his post-retirement clients, e.g., accounting
services and
business advice, would appear to be enveloped within the definition of law-related services.

Nevertheless, a lawyer remains subject to the Rules of Professional Conduct even when
providing law-related services, i.e., those that are not prohibited as unauthorized
practice of law
when provided by nonlawyers, when the services are provided:

"(1) by the lawyer in circumstances that are not distinct from the lawyer's provision
of
legal services to clients; or

"(2) in other circumstances by an entity controlled by the lawyer individually or
with
others if the lawyer fails to take reasonable measures to assure that a person obtaining the
law-related services knows that the services are not legal services and that the protections of the
client-lawyer relationship do not exist." KRPC 5.7 (2008 Kan. Ct. R. Annot. 567).

The comments to the rule describe the potential for ethical problems when a lawyer or
lawyer-controlled entity performs law-related services. The principal culprit is the possibility that
the person for whom the law-related services are performed fails to understand that the services
may not carry with them the protections normally afforded as part of the client-lawyer
relationship. Accordingly, the burden is on the lawyer to show that reasonable measures have
been taken to insure that the client understands that he or she may not expect the benefits of a
lawyer-client relationship, such as the protection of confidences, the prohibition against
representing conflicting interests, or the maintenance of professional independence.

In this respect, the panel's focus on prior practice may be germane, if not determinative. If
an attorney continues to perform the same law-related services, for the same clients, from the
same location, with the same staff as was done when those services were not distinct from the
attorney's provision of legal services, the burden to show the requisite client understanding that
the lawyer-client relationship had ceased would appear to be onerous, at best. Nevertheless, the
touchstone is not the nature of the prior practice.

Given that finding, we need not belabor Rost's tenuous and obtuse contention that the
panel's area-of-practice rule violates some constitutional right to pursue business opportunities.
We discern no such constitutional right. Rost's citation to Granholm v. Heald, 544
U.S. 460, 161
L. Ed. 2d 796, 125 S. Ct. 1885 (2005), which dealt with the Commerce Clause, is unavailing.
Moreover, even where constitutional rights are implicated, the Supreme Court, by and through
the hearing panel, may nevertheless enforce attorney disciplinary rules. See In re
Wilkinson, 251
Kan. 546, 555, 834 P.2d 1356 (1992) (constitutional right of free speech subject to regulation in
the area of attorney discipline).

WRITTEN AND ORAL DISCLOSURES

Next, Rost argues that the hearing panel implicitly found, without any legal
support, that
Rost's written and oral disclosures to clients–that Rost was retired from practicing
law–were
insufficient, as a matter of law, to prevent potential clients from being confused. He points to the
fact that he changed his sign to read "Rost & Rost Consulting, Inc." and his testimony that he
told
all of his clients that he was retired and not practicing law. Inexplicably, he then embarks on a
discussion of what is required to establish a client's waiver of a conflict of interest.

We do not read the final hearing report as making any such matter-of-law finding. To the
extent Rost asks us to reweigh the evidence, we decline the invitation.

Rost's better argument would have been to assert that changing the name on his sign and
telling his clients he was retired from the practice of law were reasonable measures to assure that
the clients knew that his law-related services were not legal services subject to the protections of
the client-lawyer relationship. Under the circumstances, however, that argument would not have
been persuasive. Given the lack of sophistication of his clients and the many other indicia that
Rost was still performing legal services, more was required from him to meet his notification
burden.

DID RESPONDENT PRACTICE LAW?

In his brief to this court, Rost asserts that the hearing panel based its
determination that he
was practicing law on five factors: Rost's correspondence with the district court; Rost's use of his
Supreme Court registration number on documents filed with the district court; Rost's meeting
with clients; Rost's specific meetings with Lloyd; and Rost's resolution of Lloyd's legal problems.
He then makes a cursory attempt at refuting those factors.

With respect to the letter to Judge Yeoman on law firm letterhead, Rost asserts that the
judge had testified that the Disciplinary Administrator had specifically advised the judge of Rost's
retirement and that the letter was prepared by a temporary employee on stationery which was
supposed to have been destroyed. Regardless of what the judge might have known, Rost signed a
letter to the court, with a copy to another attorney, on stationery identifying Rost as an attorney
at a time when he was not permitted to act as an attorney. He must bear responsibility for that act
and cannot shift the blame to members of his staff. See Supreme Court Rule 5.3(c) (2008 Kan. Ct.
R. Annot. 561) (lawyer is responsible for employed nonlawyer conduct that would be KRPC
violation if done by lawyer).

With respect to using his Supreme Court registration number on documents filed with the
district court, Rost first contends that he continued to possess his registration number,
notwithstanding his retirement. He then argues that "[u]nder Supreme Court Rule 211
[sic]
attorneys are required to use their 'Supreme court registration numbers for attorneys' on
pleadings." Presumably, Rost intended to refer to Supreme Court Rule 111 (2008 Kan. Ct. R.
Annot. 196), which deals with the form of pleadings in the district court. That rule actually cuts
against Rost. It provides that "[a]ll pleadings, briefs, and other papers prepared by attorneys or
litigants for filing in the courts . . . shall include the name, Supreme Court registration numbers for
attorneys, address, and telephone number of the person filing them." 2008 Kan. Ct. R. Annot.
196. Clearly, what distinguishes a pleading prepared and filed by an attorney from one that is
prepared and filed by a litigant is the inclusion of a Supreme Court registration number.
Accordingly, by including his registration number on the documents filed with the district court,
Rost was identifying the pleadings as having been prepared and filed by an attorney. At the time,
Rost was not authorized to prepare and file pleadings as an attorney.

With respect to meeting with clients, Rost simply refers us back to his argument that the
hearing panel improperly restricted his business opportunities. We have rejected the argument that
enforcing the prohibition against the unauthorized practice of law violates the Commerce Clause.
To the extent that Rost suggests that he was permitted to meet with clients of a "consulting firm"
which provided only law-related services, we find that potential argument is belied by Rost's own
description of his activities, which will be discussed below.

With respect to the last two factors involving Lloyd, Rost simply argues that Lloyd did not
testify that he received legal advice and that the only testimony that exists is Rost's statement that
he advised Lloyd to obtain elsewhere the legal advice which Rost could not provide. This
summary argument fails to address the fact that Rost investigated the ownership of the real
property and the manner in which its purchase was financed; that Rost then determined and
advised Lloyd that the discovered facts revealed a legal problem for Lloyd; that Rost
recommended that Lloyd solve his legal problem by executing a quitclaim deed in favor of Mr.
Fish; and that a quitclaim deed was prepared by Ms. McConnell, who was identified by Rost as
his paralegal. Such a "consulting" endeavor required the application of legal knowledge and
constituted the practice of law.

Perhaps the best evidence against Rost came from his own characterization of what he
was doing after his "retirement." He told Hesse that he was a "paralegal." Some years ago, this
court opined that a disbarred or suspended attorney could act as a paralegal. However, the
activities of such a paralegal are limited.

"The consensus is that an attorney suspended from the practice of law may obtain
employment as a law clerk, providing there are certain limitations upon the suspended attorney's
activities. Regarding limitations, we are persuaded the better rule is that an attorney who has
been disbarred or suspended from the practice of law is permitted to work as a law clerk,
investigator, paralegal, or in any capacity as a lay person for a licensed attorney-employer if the
suspended lawyer's functions are limited exclusively to work of a preparatory nature under the
supervision of a licensed attorney-employer and does not involve client contact. Any contact with
a client is prohibited. Although not an inclusive list, the following restrictions apply: a suspended
or disbarred lawyer may not be present during conferences with clients, talk to clients either
directly or on the telephone, sign correspondence to them, or contact them either directly or
indirectly." In re Wilkinson, 251 Kan. at 553.

Rost's first problem is that he was not actually employed by a licensed attorney. Granted,
he had an agreement with Kjorlie to sell his client base in which he agreed to provide
"administrative assistance" to the buyer. However, the only compensation provision of that
agreement involved splitting the future legal fees from Rost's "client base." In fact, Lloyd made his
fee payments directly to Rost, rather than to Kjorlie.

Moreover, Kjorlie's testimony clearly refuted that he was acting as Rost's supervising
attorney-employer in the matter. For instance, he appeared to be completely unaware of the
particulars of the quitclaim deed preparation and was quite confused as to the nature of Lloyd's
$3,500 payment to Rost. Rost's activities went far beyond "work of a preparatory nature." Rather,
Rost was operating as an independent paralegal who even employed his own paralegal,
McConnell.

Further, as Rost told Hesse, the client base of the post-retirement consulting firm was the
same as the law firm's client base. Clearly, Rost made the majority, if not all, of the contacts with
the clients. He even acknowledged that he would go to court with a former client and the new
attorney to assist with the case. In short, the only change in Rost's activities following retirement
is that he would only "second chair" in court and that he would tell his clients he was a "retired
attorney." Rost was practicing law.

Rost attempts to avoid the rules set forth in Wilkinson by asserting that a
retired attorney
is different from a suspended or disbarred attorney. He intimates that a retired attorney has more
leeway to engage in some sort of limited practice of law than an attorney who has been
suspended. We disagree. The reasons for applying the Wilkinson
rule–e.g. to avoid the
appearance of impropriety, to avoid confusion among laypersons, or to avoid the temptation for
law-trained clerks (or paralegals) to go beyond mere preparatory work–apply as equally to
retired
attorneys as to suspended or disbarred attorneys. See In re Wilkinson, 251 Kan.
549-51.

Rost's situation is particularly akin to that of a suspended attorney because he avoided the
potential of being placed on that status by agreeing to retire and cease practicing law. He was just
as obligated to refrain from the practice of law as if he had been formally suspended.

CLEAR AND CONVINCING STANDARD

Given the brevity of Rost's argument on this issue, we can recite it verbatim:

"The Hearing Panel admitted in paragraph 41 note 2 that it failed to use the clear
and
convincing standard as it related to the charge of preparing a legal document. In addition, Judge
Yeoman testified that it was merely insinuation that he continued to practice law which of course
is not sufficient to meet the clear and convincing standard."

The panel's footnote does not refute that it applied the correct standard to all of the
evidence presented. To the contrary, it corroborates that the panel knew and applied the correct
standard. We are convinced that the truth of the facts presented, many of which came directly
from Rost, is highly probable.

Moreover, Judge Yeoman's function in this proceeding was to present the facts of which
he had knowledge. The fact that this witness did not proffer a definitive legal opinion that Rost
was continuing to practice law is of no consequence.

STANDARDS FOR IMPOSING LAWYER SANCTIONS

Rost recites that he is challenging whether the standards for imposing lawyer sanctions
were violated. For argument, however, he simply argues the facts, in effect urging us to reweigh
the evidence and reassess witness credibility. We need not rehash the facts. Moreover, we find
that the hearing panel correctly applied the applicable standards.

APPROPRIATENESS OF HEARING PANEL RECOMMENDATION

The hearing panel noted that this case is unique, and it crafted a
recommended sanction
which it felt would rectify the misconduct and prevent future misconduct. It recommended that
Rost be disciplined by published censure, and in conjunction with the censure that the Supreme
Court issue a cease and desist order. Then, if Rost subsequently violates that order, the court can
cite him for contempt. In making its recommendation, the panel recited:

"65. In making this recommendation for discipline, the Hearing Panel considered
the
factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions
(hereinafter 'Standards'). Pursuant to Standard 3, the factors to be considered are the duty
violated, the lawyer's mental state, the potential or actual injury caused by the lawyer's
misconduct, and the existence of aggravating or mitigating factors.

"66. Duty Violated. The Respondent violated his duty to the
profession to comply with
rules and orders of the court.

"67. Mental State. The Respondent knowingly violated his duty.

"68. Injury. As a result of the Respondent's misconduct, the
Respondent caused potential harm to
Mr. Lloyd and the legal profession.

"69. Aggravating or Mitigating Factors. Aggravating circumstances
are any
considerations or factors that may justify an increase in the degree of discipline to be imposed. In
reaching its recommendation for discipline, the Hearing Panel, in this case, found the following
aggravating factors present:

"70. Prior Disciplinary Offenses. In 2001 and 2003, the Respondent was
previously
disciplined by informal admonition in a total of three cases. In DA8437, the Disciplinary
Administrator informally admonished the Respondent for having violated KRPC 1.3 and KRPC
8.4. In DA8440, the Disciplinary Administrator informally admonished the Respondent for
having violated KRPC 1.5. In DA8946, the Disciplinary Administrator informally admonished
the Respondent for having violated KRPC 8.4.

"71. Dishonest or Selfish Motive. The Respondent's
misconduct–practicing law after he
was retired from the practice of law–was motivated by selfishness.

"72. A Pattern of Misconduct. The Respondent engaged in a pattern of
misconduct by
continuing to practice law after he had taken retired status.

"73. Refusal to Acknowledge the Wrongful Nature of Conduct. The
Respondent refused
to admit any wrongdoing.

"74. Vulnerability of Victim. Mr. Lloyd is an ill and feeble elderly man. He
was
vulnerable to the Respondent's misconduct.

"75. Mitigating circumstances are any considerations or factors that may justify a
reduction in the degree of discipline to be imposed. In reaching its recommendation for
discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:

"76. Previous Good Character and Reputation in the Community Including any
Letters
from Clients, Friends, and Lawyers in Support of the Character and General Reputation of the
Attorney. The Respondent was an active and productive member of the bar in Topeka,
Kansas.
He enjoyed the respect of his peers and clients and generally possesses a good character and
reputation.

"77. In addition to the above-cited factors, the Hearing Panel has thoroughly
examined
and considered the following Standards:

'Suspension is generally appropriate when a lawyer knowingly engages in conduct
that is a
violation of a duty owed to the profession, and causes injury or potential injury to a client, the
public, or
the legal system.' Standard 7.2.

'Reprimand is generally appropriate when a lawyer negligently engages in conduct
that is a
violation of a duty owed to the profession, and causes injury or potential injury to a client, the
public, or
the legal system.' Standard 7.3.

'Reprimand is generally appropriate when a lawyer: . . . (b) has received an
admonition
for the same or similar misconduct and engages in further acts of misconduct that cause injury or
potential injury to a client, the public, the legal system, or the profession.' Standard 8.3."

In contrast, the Disciplinary Administrator recommends that Rost be disbarred, citing to
two additional standards:

"Disbarment is generally appropriate when a lawyer knowingly engages in conduct
that
is a violation of a duty owed as a professional with the intent to obtain a benefit for the lawyer or
another, and causes serious or potentially serious injury to a client, the public, or the legal
system." Standard 7.1.

"Disbarment is generally appropriate when a lawyer:

(a) intentionally or knowingly violates the terms of a prior disciplinary order and such
violation
causes injury or potential injury to a client, the public, the legal system, or the profession."
Standard 8.1(a).

The Disciplinary Administrator supports the recommendation for a harsher sanction by
arguing that Rost blatantly violated his agreement with the Disciplinary Administrator's office to
retire from the practice of law; that he has failed to acknowledge any wrongdoing; and that he
took advantage of Lloyd, who the panel described as an "ill and feeble elderly man."

Rost challenges the panel's recommendation, believing that no sanction is warranted. He
argues that we have no jurisdiction over retired attorneys; that his unintentional letter to the
district court and use of his attorney registration number do not warrant public censure; and that
his actions with regard to Lloyd did not establish, by clear and convincing evidence, that he was
practicing law.

This court carefully considers the sanction recommendations of assigned hearing panels, as
well as giving due regard to those of the Disciplinary Administrator. However, we are not
constrained by those recommendations and may fashion a sanction that is entirely of our own
choosing. Supreme Court Rule 212(f) (2008 Kan. Ct. R. Annot. 328-29) (sanction
recommendations are "advisory only and shall not prevent the Court from imposing sanctions
greater or lesser than those recommended").

We discern that the hearing panel was striving to develop a sanction recommendation
which would provide for some oversight to insure that Rost does not continue to practice law.
However, we agree with the Disciplinary Administrator's assessment that a more severe sanction
is warranted. When previously faced with disciplinary proceedings, Rost essentially agreed to an
indefinite suspension from the practice of law, styled as a retirement. He was unwilling to abide by
that agreement and gives no indication that he understands that being on retired status does not
permit him to independently practice law, even on a limited basis. Imposing a sanction of
disbarment will clarify Rost's status, both for him and for his clients. See Supreme Court Rule 218
(2008 Kan. Ct. R. Annot. 350) (disbarred attorney must notify clients in writing of inability to
provide further legal representation).

Based upon our consideration of the entire record, the arguments of counsel, and
statements of the respondent, we conclude that the appropriate discipline in this case is
disbarment from the practice of law in this state.

IT IS THEREFORE ORDERED that the respondent, Thomas O. Rost, be and he is
hereby disbarred from the practice of law in the state of Kansas in accordance with Supreme
Court Rule 203(a)(1) (2008 Kan. Ct. R. Annot. 266) for his violations of the Kansas Rules of
Professional Conduct.

IT IS FURTHER ORDERED that the Clerk of the Appellate Courts strike the name of
Thomas O. Rost from the roll of attorneys licensed to practice law in Kansas.

IT IS FURTHER ORDERED that the respondent shall forthwith comply with the
provisions of Supreme Court Rule 218 (2008 Kan. Ct. R. Annot. 350) and shall furnish proof of
compliance to the Disciplinary Administrator.

IT IS FURTHER ORDERED that this opinion be published in the official Kansas Reports
and that the respondent pay the costs of these proceedings.

"1 At the hearing on this matter, the
Respondent testified that Mr. Lloyd's check
dated October 18, 2005, but not deposited until April, 2006, was for legal fees
incurred prior to his retirement from the practice of law on October 1, 2005."

"2 The pleading appears to have been prepared
and filed by Mr. Kjorlie. According
to the Respondent, 'Tonya M. McConnell . . . prepared the accounting based upon
Mr. Lloyd's records under the direction of Mr. Kjorlie.' According to statements
made by Mr. Kjorlie to Mr. Hesse, during his investigation, Mr. Kjorlie did not
prepare the accounting nor did he assist Mr. Lloyd in preparing or filing the
accounting. Mr. Kjorlie's testimony regarding this matter at the Formal Hearing
was less than clear. While the Respondent may have drafted the pleading, he
denied doing so. Clear and convincing evidence was not presented to establish who
prepared the pleading."

"3Despite the assertions that Mr. Kjorlie
assisted Mr. Lloyd during this time, it
does not appear that Mr. Lloyd paid attorney fees to Mr. Kjorlie. The only fees
paid by Mr. Lloyd during this time appear to have been paid to the Respondent."

4REPORTER'S NOTE: Judges Jerry G. Elliott and Nancy L.
Caplinger, of the Kansas Court of
Appeals, were appointed to hear case No. 101,746 vice Justices Luckert and Rosen pursuant to
the authority vested in the Supreme Court by K.S.A. 20-3002(c).